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Mexican and US Organized Labor and the North American Case Western Reserve Journal of International Law Volume 29 | Issue 2 1997 Withered Giants: Mexican and U.S. Organized Labor and the North American Agreement on Labor Cooperation Fredrick Englehart Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Fredrick Englehart, Withered Giants: Mexican and U.S. Organized Labor and the North American Agreement on Labor Cooperation, 29 Case W. Res. J. Int'l L. 321 (1997) Available at: https://scholarlycommons.law.case.edu/jil/vol29/iss2/4 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. WITHERED GIANTS: MEXICAN AND U.S. ORGANIZED LABOR AND THE NORTH AMERICAN AGREEMENT ON LABOR COOPERATION Fredrick Englehart* Table of Contents L Introduction . ............................... 323 II. Organized Labor and Labor Law ................... 327 A. The United States ........................ 329 1. Organized Labor's Ascent .................. 329 2. Organized Labor's Decline .................. 330 a. The Strike ........................... 330 b. Criminal Infiltration ..................... 333 c. Philosophical Decisions .................. 335 d. Entrenched Power ...................... 337 3. Summary .............................. 338 B. Mexico ................................. 340 1. Organized Labor's Ascent .................. 340 2. Organized Labor's Decline .................. 342 a. Corruption ........................... 342 b. Electoral Losses ....................... 344 c. Economic Hardship ..................... 345 3. Summary ............................. 347 III. The NAALC ................................ 348 A. Purpose ................................ 350 B. Administration . .......................... 351 C. Procedure . ............................. 352 1. Level One: Submission Through Ministerial Consulta- tions .... ..................... 352 2. Level Two: Evaluation Committee of Experts 353 3. Level Three: Arbitration .............. 354 D. Summary ......................... 356 IV. The Submissions ....................... 357 A. U.S. NAO Submission: Number 940003 ..... 358 1. The Allegations ................... 359 2. The Response .................... 360 3. The NAO Report .................. 362 * The Author would like to thank Professor Hiram E. Chodosh and Professor Robert N. Strassfeld for their helpful comments and guidance, and my loving spouse, Elizabeth, for her encouragement and perseverance. 322 CASE W. RES. J. INTL L. [Vol. 29:321 Procedural Matters ...... 362 Findings and Recommendati )ns 363 (1) The Dismissals ........... 363 (2) The Union Election ........ 365 (3) The Work Stoppage ........ 366 (4) Union Registration ......... 366 4. Post-Report Developments: The Subseq uent Union] Registra- tion Petition ................ 372 5. Ministerial Consultations ........ 373 6. Summary .................. 374 B. NAO MEX Submission: Number 9501/Nj ~MEX 376 1. The Allegations .............. 376 2. The Response ............... 379 3. The NAO Report ............. 0 379 4. Post-Report Developments: The NLRB Hearing I 380 5. Ministerial Consultations ........ 0 383 6. Summary .................. 383 V. Recommended Amendment to the NAALC .. Q 385 VI. Conclusion ...................... Q 386 1997] MEXICAN AND U.S. ORGANIZED LABOR [A] society which evades its responsibility by thrusting upon the courts the nurture of the spirit in the end will perish. -Learned Hand' I. INTRODUCrION The North American Agreement on Labor Cooperation2 (NAALC), the supplemental labor standards agreement to the North American Free Trade Agreemen (NAFTA), links the promotion of fundamental labor rights with the privilege of trade.4 While it is not the first agreement negotiated by the United States that addresses social issues, the NAALC is unprecedented5 in that it is the first trade agreement that contains a ' LEARNED HAND, The Contributionof an Independent Judiciary to Civilization, in THE SpnTrr oF LIBERTY 155 (1. Dilliard ed., 1953). 2 See North American Agreement on Labor Cooperation, Sept. 14, 1993, 32 I.L.M. 1499 [hereinafter NAALC]. ' North American Free Trade Agreement, Dec. 17, 1992, 32 LL.M. 289 (cbs. 1-9), 32 I.L.M. 605 (chs. 10-22) [hereinafter NAFrA]. 4 Cf. Stanley M. Spracker & Gregory J. Mertz, Labor Issues Under the NAFTA: Options in the Wake of the Agreement, 27 INT'L LAW. 737, 743-44 (1993) (discussing the four previous trade agreements that contain the notion of linkage: the Caribbean Basin Initiative, 19 U.S.C. §§ 2701-2706 (1988); the 1984 amendments to the Gen- eralized System of Preferences, 19 U.S.C. §§ 2461-2465 (1988); the 1985 amendments to the Overseas Private Investment Corporation Act, Pub. L. No. 99-204, § 4, 99 Stat. 1669, 1670 (codified in scattered sections of 22 U.S.C. and 31 U.S.C. (1988)); and the Omnibus Trade and Competitiveness Act of 1988, 19 U.S.C. § 2411 (1988)). ' The NAALC has drawn a great deal of scholarly attention. See generally Dr. Alejandro Alvarez B6jar, Industrial Restructuring and the Role of Mexican Labor in NAFTA, 27 U.C. DAviS L. REv. 897 (1994) (concluding that the Mexican working class will be hurt under NAFrA); Jason S. Bazar, Comment, Is the North American Agreement on Labor Cooperation Working for Workers' Rights?, 25 CAL. W. INT'L LJ. 425 (1995) (analyzing the NAALC in light of the first two submissions); Lance A. Compa, The First NAFTA Labor Cases: A New International Labor Rights Regime Takes Shape, 3 U.S.-MEx. LJ. 159 (1995) (thoroughly discussing the first two submis- sions); Elizabeth C. Crandall, Comment, Will NAFTA's North American Agreement on Labor CooperationImprove Enforcement of Mexican Labor Laws?, 7 TRANSNAT'L LAW. 165 (1994) (focusing on the parties' motives for including the NAALC in NAFTA as key to its prospects of improving labor law enforcement in Mexico); Katherine A. Hagen, Fundamentals of Labor Issues and NAFTA, 27 U.C. DAvIs L. Rv. 917 (1994) (discussing possible future effects of NAFTA's labor side agreement); see also Robert E. Herzstein, The Labor CooperationAgreement Among Mexico, Canada and the United States, 3 U.S.-MEX. LJ. 121 (1995) (discussing the instrumentality of the NAALC from the perspective of its political and historical context); Jorge F. Perez-Lopez, The Institutional Framework of the North America Agreement on Labor Cooperation, 3 324 CASE W. RES. J. INTL L. [Vol. 29:321 mechanism by which the labor practices of the United States and its trading partners may be examined on demand.' To initiate the review of a labor law matter arising in the territory of another country, an interested party files a public submission with the National Administrative Office (NAO), a NAALC administrative agency Progressively, the matter may be pursued through consultations among NAOs, cabinet-level or ministerial consultations, evaluations by a commit- tee of experts, and finally through arbitration, which may result in mone- tary sanctions! However, labor relations matters involving freedom of association and collective rights may not be carried beyond ministerial consultations.9 NAFTA arrives at a time when the organized labor movements of the United States and Mexico are in transition. From its peak during World War II, U.S. union membership has steadily declined. Today only about one out of seven workers belongs to a labor union." This Note argues that the principal causes for the decline of U.S. organized labor are its (1) overuse of the work stoppage, (2) tolerance for criminal U.S.-MEx. LJ. 133 (1995) (discussing the structure and the institutions of the NAALC); Jorge F. Perez-Lopez, The Promotion Of International Labor Standards and NAFTA: Retrospect and Prospects, 10 CONN. J. INT'L L. 427 (1995) (examining the NAALC as an U.S. instrument promoting international labor standards); Michael J. McGuinness, The Protection of Labor Rights in North America: A Commentary on the North American Agreement on Labor Cooperation, 30 STAN. J. INT'L L. 579 (1994) (examining the Agreement's structure and dispute resolution mechanisms, the first few complaints filed under it, and comparing it to extant European mechanisms); Charles W. Nugent, Comment, A Comparison of the Right to Organize and Bargain Collectively in the United States and Mexico: NAFTA's Side Accords and Prospects for Reform, 7 TRANSNAT'L LAW. 197 (1994) (comparing fundamental labor rights in the United States and Mexico). 6 See Joaquin F. Otero, The North American Agreement on Labor Cooperation: An Assessment of Its First Year's Implementation, 33 COLUM. J. TRANSNAT'L L. 637, 662 (1995). 1 See NAALC, supra note 2, art. 16. 8 See id. arts. 21 (consultations between NAOs), 22 (ministerial consultations), 23- 26 (evaluation committees of experts), 29-38 (provisions governing the procedures of invoking and pursuing a submission through the arbitral panel), 39(4)(b) and 39(5)(b) (specifying the imposition of monetary sanctions). 9 See id. art. 23(2). " See Union Membership: Data for 1994 Shows Membership Held Steady at 16.7 Million, Daily Lab. Rep. (BNA), No. 27, at D-23 (Feb. 9, 1995) (reporting that union density of 15.5% in 1994 represented a decrease from 15.8% in 1993, but that the number of union members increased by 150,000 to 16.7 million over the same period) [hereinafter Union Membership: Data for 1994].
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